Raico argues that a free society is preferable to either. He suggests, indeed, that the CIR must be up to mischief. I have to disagree.

CIR focuses on the constitutional and moral errors of the current civil rights policy, a policy that seeks to create group rights in order to advance individual rights. CIR’s strategy is to demonstrate that such race preference policies are in conflict with the Constitution, which, properly understood, affirmatively forbids such policies at all public institutions.

If the world were libertarian, then Raico might be right to insist that CIR focus on freedom rather than steps toward freedom. But the world is far from libertarian. CIR, at worse, can be accused only of seeking to win one battle at a time. It uses the Constitution, which forbids all official or public racial discrimination, to attack federal and state affirmative action policies, which seek to advance group rights. This is a correct course. Before we can address the issue of whether there should be any law or regulation of private parties in this areas (a question easy for us libertarians to answer), it is necessary to defeat current policy. Only when compulsory affirmative action policies are eliminated are we likely to gain a favorable hearing for the policies that Raico and I favor.

Many liberals have been led to believe somehow that group preferences create no problems of fairness. As a result of the work that organizations like CIR carry on, however, many egalitarians are beginning to change sides. Recent electoral results indicate this shift in views. But most Americans believe that the government should do something in this area. Once current policies are cleared away, tolerance for voluntary help programs is likely to re-emerge, along with a willingness to eliminate the laws that now forbid it. The challenge is to show people that a freer world is also a fairer world. CIR is helping in that educational effort.

While the Constitution forbids public institutions from preferring one race over another, current policy requires (and current liberal ideology mandates) that student populations be racially and sexually balanced - so many men, so many women; so many blacks, not so many whites. As Raico notes, CIR’s success means that color-blindness will be required of even such nominally private institutions as Duke and the University of Chicago as well as public institutions. But any institution can extricate itself from the influence of such requirements by avoiding taxpayer-financing. Hillsdale, Grove City, and Bob Jones University have already done so. This, in itself, would be a very good thing. Truly private colleges and universities can set their own policies, but when taxpayers pay in the tab, political judgments are inevitable; and what other political rule, save color-blindness, would one endorse?

I would note, however, that CIR has never challenged the enrollment of practices of a private of even quasi-private college. Instead, it has mounted an inspired campaign against such state institutions as the University of Texas and the University of Michigan, and has won a number of major legal victories (the Hopwood case in Texas for example). Each victory both addresses a specific injustice and provides an effective way of improving public understanding of injustice, CIR has effectively demonstrated that constitutional safeguard of equality under the law is not yet obsolete. That demonstration, I believe, merits out support. Raico’s basic issue, however, remains: Should people be allowed to discriminate? Should a school or an employer be allowed to admit or hire only red-headed Irishmen, for example? To put it badly, do even racists have rights?

To libertarians, the question is probably yes. Libertarians tend to believe, correctly in my opinion, that free societies are far more likely than political agencies to control discrimination. Still, we have not yet persuaded the American people of that fact. CIR’s work is a powerful educational tool in that battle and should be valued accordingly. Nevertheless, Raico is right in believing that the case for letting truly private universities differentiate themselves remains strong. Indeed, as one scholar in this area has noted:

“Perhaps, we should repeal the civil rights laws that tie private institutions to constitutional commands and let those institutions be truly private. Let each define its own mission and admission standards. Let there be institutional choice (for lack of a better word) diversity.”

Raico might not that these words appeared in the keynote publication of the conservative Heritage Foundation, Policy Review. Moreover, they were written by the Director of the Center for Individual Rights, Michael Greve. In his critical work on cultural theory, Aaron Wildavsky suggests that a balance, a tension, between those favoring freedom (libertarians or individualists), those favoring order (conservatives or traditional values folk), and those favoring fairness (liberal egalitarians) is critical to the health of a society. Each value has its down side, so we are better if no one dominates. In fact, our goal is less a libertarian world than a world of institutions that safeguard libertarian values; to achieve this, we must find ways of making our case to those who do not share our values.

In American Political Culture, Richard Ellis observes that American opposition to the growth of big government resulted from the primarily skeptical view of politics taken by both individualists and egalitarians. But the Progressive capture of egalitarian values, beginning in the late 18th century, destabilized America and allowed government to grow. If we are to reverse this tendency, we must recapture the idea of fairness that is so important to egalitarians. CIR shows how this can be done.

Egalitarians do not really believe that one can be fair to one person by being unfair to another. The proponents of the Civil Rights laws were forceful on this point. They explicitly denied any intention of promoting quotas that would disadvantage some people for the supposed good of others. By selecting poignant examples of individuals harmed by affirmative action, CIR gives a human face to the injustices of coercive egalitarianism, thus discrediting the policy among its most ardent supporters. Nothing is more likely to force a rethinking than the work of CIR.

Indeed, CIR’s strategy should be taken to heart by all libertarians who are interested in actually promoting freedom. In our multicultural world, libertarians must find ways to show that people can favor a freer world because it would also be a fairer world. After all, people don’t need to favor the whole philosophy of liberty if they are to endorse the institutions of liberty.